Article 32: Why the Bad Rap?

In the wake of the Article 32 investigation for 3 Naval Academy Midshipmen, many advocates used the long and detailed cross examination by defense attorneys as a rallying point to advocate for a completely revamped system for determining whether reasonable grounds (essentially probable cause) exist to send more serious cases, those facing greater than 1 year of confinement, to trial.

While I’ve never really practiced in any jurisdiction outside the military (I did, but it was very, very brief and unremarkable), I have a general understanding of the non-military ways of conducting a probable cause determination for felony offenses.

One is the grand jury. This is a group of people who listen to evidence presented by a prosecutor. In most cases, a judge presides over the proceeding to ensure that rules, policies, and procedures are followed. These proceedings are closed.  Most people presume that the prosecution portrays the case in the light most detrimental to the accused, but I’ve heard of the opposite occurring. You just never know, and, since it happens behind closed doors, there is no way to know exactly what happens. They make a decision based on the weight of the evidence, and their decision is binding.

Because of the expense of keeping a grand jury empaneled, many smaller jurisdictions use a process called a preliminary hearing. I saw many of these in Kansas when I interned in a DA’s office. Accused and counsel are present, and, as with a grand jury, the prosecution attempts to prove that probable cause exists to move the case forward to trial. However, defense counsel is allowed to test the evidence, cross examine witnesses, and present evidence. The rules of evidence are relaxed, and judges understand that part of the process is to allow defense counsel to conduct discovery on the record. A judge presides over the proceeding instead of a grand jury,  and he or she makes the probable cause determination. They generally grant the defense a great deal of leeway during cross. The judge’s decision is binding.

The Article 32 investigation is similar to a preliminary hearing, except that any commissioned officer may act as the investigating officer (presiding over the entire proceeding), and the recommendation of the investigating officer is merely a recommendation. It is not binding. The legal burden for the prosecution is essentially the same, and, as with a preliminary hearing, defense is permitted to use the event as an opportunity for discovery. While it is called an investigation, it occurs in a hearing environment.

As a prosecutor, I loved the Article 32 because it afforded me a chance to test my case, solidify my evidence and witnesses, and provided me with a dress-rehearsal for trial. In many ways, I viewed the investigating officer as a sample of someone who could be assigned to an eventual panel (jury), and I judged their reaction to each witness and every shred of evidence. That opportunity is golden and cannot be replicated.

As a defense counsel, I loved the Article 32 because I could use it as a bargaining chip in plea negotiations. If one occurred, it gave me an opportunity to conduct discovery, locking witnesses to their statements on the record.

Either way, I saw a lot of benefits.

Now, let’s turn our attention to the Naval Academy hearing for the 3 Midshipmen former football players. You should know a few things:

1. The Article 32 investigation could have been presided-over by any commissioned officer. Even those with no legal training could have been appointed. In this case, an actual military judge was appointed. This is very unusual, and shows that they are taking this situation very, very seriously. In almost 10 years, the only time I’ve heard of military judges presiding over an Article 32 investigation is in cases where the death penalty was possible and being sought by the government. To put it into perspective, I had a premeditated murder case where the Article 32 investigating officer was a Medical Service Corps officer with no legal training. That was fine in the eyes of the law. In fact, he was extremely capable and conscientious.

2. The prosecution and defense may object during an Article 32. Generally, the rules permit all evidence, but it must be relevant and not cumulative. The investigating officer has access to a neutral judge advocate to provide advice, if necessary.

3. The investigating officer for the USNA football sexual assault case recommended that the case not proceed to General Court-Martial. As stated before, this is merely a recommendation. It is not binding.

4. After he makes his recommendation, it is sent to the General Court-Martial Convening Authority (GCMCA). For the Naval Academy, this is the Superintendent (essentially the equivalent of a university president or chancellor). However, it doesn’t go directly to him. Before it goes to him, it is reviewed by the prosecutor(s), the Chief of Justice, and a few other more senior JAGs who review the findings, recommendations, and evidence. Then, the GCMCA’s legal advisor, usually a Navy Captain or Marine Colonel, makes a recommendation. In more serious cases, this recommendation is made both in writing and in person during an office call with the GCMCA. From what I’ve read, the GCMCA’s lawyers recommended not proceeding to a General Court-Martial.

5. The GCMCA declined to prosecute one Midshipman (consistent with recommendations by the military judge and JAG lawyers). However, he ordered a General Court-Martial for the other two former football players. This, of course, went against the recommendations of his JAGs (according to the reports I’ve read).

Now, consider this.

Advocates on behalf of military sexual assault victims want the Article 32 process and trial determination controlled by lawyers.

Think about that for just a second.

Suppose the Naval Academy cases were controlled by lawyers familiar with criminal justice and the Uniform Code of Military Justice, as many victim advocates demand. That would be those Navy Lieutenants, Lieutenant Commanders, Commanders, and Captains sitting in the JAG office as well as possibly a few peers from elsewhere across the Navy.

Would the USNA football player case be proceeding to trial, considering the recommendations of the GCMCA’s staff judge advocate as well as that of a military judge?

Ain’t that interesting?

I was recently talking to a friend who is a Chief of Justice at a military installation. At one point, I lamented the fact that not a lot of folks were looking for civilian counsel at court-martial. They responded “Yeah, well, that’s because all the government defense counsel look like heroes because of all the acquittals they’re getting at court-martial for sexual assault cases.”

So many cases were being forced into court-martial, not because they were good cases, but because of the pressure to prosecute every sexual assault allegation.

I responded “But what about all the new rules, laws, special victim counsel, additional prosecutors, special investigators, and all the other folks you guys added to your team?”

The Chief of Justice snipped, “None of that changes the evidence. Bad facts is bad facts. You know that.”

Yep, I guess I do.

The AVVOcalypse is Upon Us; Run for Your Lives!

I thought it would never happen to me.

I’m a small-time guy. As I’ve stated before, my practice is not small or solo. It is fun-sized. In the vast legal world, I’m about as insignificant as you get. My niche is easy to ignore, and even easier to dismiss.Screen Shot 2012-11-23 at 8.12.25 PM

This brings me to Avvo. I don’t post advice there. I’m not a contributor. I only go there for periodic checks of my information to ensure that everything is still accurate and that nothing stupid happened. Plus, it is always fun to check my latest Avvo size. When time allows, I’ll occasionally write something nice about attorneys I know, but only when I know enough about them to make an intelligent, positive appraisal based on real legal work. I’ve never garnered business from them, nor do I plan to do so. It is a passive profile, at best.

Additionally, and possibly most important, Avvo insists upon including my full middle name on the profile. The mere sight of my middle name causes me to experience epileptic seizures. Thanks, Mom.

Lately, Mark Bennett reacted amusingly, yet truthfully, to random requests for Avvo reviews. He is brutal, and justifiably so. After reading this, I logged-in to my account to make sure that some automatic bullshit setting at Avvo wasn’t doing this with my profile. To my relief, there doesn’t appear to be such an automatic setting. At the same time, I was dismayed to see that requesting a review requires one to make an affirmative choice to click on a “Request Endorsement” button. Based on my limited research, each of those who earned their honest review from Mark asked for it by making an affirmative choice to click the button next to his picture.

So, I’ve covered both my relief and my dismay. Now, let’s turn our attention to my horror. I discovered this review on my profile.

Screenshot 2013-10-18 09.09.39

I ran through every possible scenario about how I know Christopher.

Is he a long-lost cousin? A check of the family tree produced negative results.

Someone from my hometown? Ha! No.

Undergrad/law school classmate or fellow alum? Nope.

“Fellow lawyer in community?” He’s hundreds of miles from me and not working in military law, as far as I know.

A search of email history and call logs for someone who may have contacted me for help with a case involving a service member also produced negative results.

Former female acquaintance who went the transgender route? To the best of my knowledge, no.

OK, I don’t know the guy. So, let’s break down the numbers.

Excluding the last sentence, the number of words he uses to describe me: 15.

The number of words he uses to describe himself: 29.

Number of times I’ve given advice on Avvo: 0. This is pathetic compared to Christopher’s 7,962 answers on Avvo.

Endorsements for Christopher on Avvo: 250 from all over the US.

Perhaps when saying that I give “well reasoned and common sense advice on Avvo,” he really means that I give common sense advice about Avvo. If that was his intent, the number is 1 because of this. In that case, I appreciate the kind words.

Number of times I’ve interacted with him: 0 (unless the whole transgender thing listed above).

So, Christopher, the floor is yours. I’m open to hearing more about how you learn from me every day based on my “excellent” advice on Avvo.

That’s all I have time to say. Gotta go bludgeon a casual acquaintance who just endorsed me on LinkedIn.

Oh, and one more number…

Number of times I deleted Christopher’s endorsement from my Avvo profile: 1.

 

Longing for the Days When Commanders Respected Soldier Needs

Being deployed is difficult. This goes without question. Some hardships are inevitable. Others are preventable. In some cases, the military makes life harder just because.

This seems to be one of those cases. Please, if you have any love in your hearts for America’s fighting men and women, write your congressman or senator in opposition to this Marine policy.

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Now, I do question whether this is real or a prank.

(Note: Article 92, UCMJ is the “Failure to Obey Order or Regulation” military law.)

Why I think this might be a prank.

– I can’t imagine a medical provider agreeing with the old “I caught the disease from a toilet seat” theory. Decades ago, this longstanding excuse used with aplomb by husbands worldwide was debunked. If it didn’t work for desperate, guilty husbands 20 years ago, it shouldn’t work for commanders today.

– Are we really to believe that a few ounces of semen somehow tips a port-a-potty from a sanitary oasis to unsanitary disease haven? After all, these things see gallons of urine every day, not to mention the semi-digested remnants of last night’s beef yakisoba. (An aside: When I was in Saudi Arabia in the 90s, the Air Force fed us beef yakisoba every night. The only saving grace was that it smelled the same on the way out as it did on the way in. But I digest.)

– It fails to cite authority (in the form of a dated policy memo or other order) or the commander issuing the order. Though, it does give a point of contact and phone number.

– Because my buddies and I pulled similar pranks when I was in Bosnia-Herzegovina. Anything for a chuckle.

– There’s the obvious enforcement problem. “So, Gunny, how exactly did you catch the Corporal doing this?”

Why I think this might be serious.

– Poor Michael Perkins is now known across facebook for being the POC (Point-of-Contact) for the masturbation policy. If it were not an actual policy, would they attach someone’s name to it? OK, well, I would, but aside from me, would a reasonable person do the same?

– Because military.

Undeniable Hope for the University of Kansas Football Program

Kansas fans (like myself) need to start looking on the bright side, and today’s Mizzou game, ironically, might provide a bit of the hope we need. In 4 easy steps, Kansas will make a logical change that catapults the program to national success and sustained excellence.

Step 1: Today, Mizzou beat Georgia. This may be the push Georgia fans have sought to eject Mark Richt from Athens. After all, they’ve been looking for a halfway-decent excuse for the last few years.

Step 2: Georgia and Mark Richt part ways at the end of the season. Though gracious in his exit, Richt makes it no secret that he’d like to land on his feet with a BCS-conference school and another chance to prove himself as a top-flite football coach.

Step 3: Kansas parts ways with Charlie Weis.

Step 4: Kansas Athletic Director Sheahon Zenger finds the “right coach at the right time” when he lures Rich Kotite out of retirement to take the helm at Kansas.